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Madhya Pradesh High Court · body

2009 DIGILAW 1198 (MP)

Siddhar v. State of M. P.

2009-10-13

A.K.SHRIVASTAVA, S.S.DWIVEDI

body2009
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 4.1.2001 passed by the learned Special Judge, Shivpuri in Special Case No. 76/2000 convicting the appellant under Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the Act") as well as under Section 376 (1) of IPC and thereby sentencing him to suffer life imprisonment and fine of Rs. 10,000/-, in default, further RI of two years, the appellant has knocked the doors of this Court by preferring this appeal under Section 374 (2) of Code of Criminal Procedure, 1973. 2. In brief, the case of prosecution is that the prosecutrix is the daughter of Ramvati Bai. These persons are the members of the Scheduled Caste community. At the relevant point of time, both of them were residing, in Sanjay Colony, Shivpuri. The father of the prosecutrix had already died. On the fateful day i.e. on 14/512000 at 8.00 in the morning, the appellant arrived at the house of prosecutrix having age of 12 years and asked her mother that in some religious function, he has to provide meals to unmarried female children (Kanyabhoj), hence, he requested the mother of the prosecutrix to accompany the prosecutrix with him so that she may be included in that religious function and he also assured the mother of the prosecutrix that after providing meals to her, he will leave the prosecutrix to her house. The mother of the prosecutrix accepted the request of the appellant and gave permission to the appellant to accompany her daughter (prosecutrix). Thereafter, the appellant carried the prosecutrix in a jeep and brought her to Khubat Ghati. It is said that in the jungle of Khubat Ghati, the appellant committed sexual intercourse with the prosecutrix against her will and wishes. The prosecutrix in weeping condition came from the jungle of Khubat Ghati to the main road, where she stopped a bus and narrated the incident to Pancham (PW-3) and Harikishan (PW-5) who were travelling in the same bus. 3. The prosecutrix after reaching at her house also narrated the incident to her mother. Eventually, mother by carrying the prosecutrix came to police chowki and a report was lodged by the prosecutrix. 3. The prosecutrix after reaching at her house also narrated the incident to her mother. Eventually, mother by carrying the prosecutrix came to police chowki and a report was lodged by the prosecutrix. Since the offence was committed within the territorial jurisdiction of Police Station Satanwada, the First Information Report was sent to the said police station. On the basis of which the Police Satanwada registered a case against the appellant under Section 376 (1) of IPC read with section 3 (1) (xii) of the Act. Since, the case was registered under the provisions of the Act also, the SDO (P) Shivpuri investigated the matter. 4. Investigating agency arrived at the spot; prepared the spot map; recorded the statements of the prosecutrix and her mother and other witnesses; arrested the appellant and sent the prosecutrix for medical examination. 5. The prosecutrix was also referred to the Radiologist for ascertaining her age the Radiologist opined that the age of the prosecutrix was in between 12 to 14 years. In furtherance to its investigation, the investigating Agency seized the undergarment of the prosecutrix and sent it for chemical examination. Two slides of the vaginal swab of the prosecutrix was also prepared and it was also sent for chemical examination. The semen were found in the vaginal swab of the prosecutrix. 6. After completion of the investigation, a charge-sheet was submitted in the competent Court which on its own committed the case to the Court of Sessions/Special Judge where the appellant was tried. 7. The learned Special Judge on going through the allegation made in the charge-sheet against the accused person, framed charges punishable under Section 376 (1) of the IPC. Needless to emphasise the appellant abjured the guilt and pleaded complete innocence and requested for the trial. 8. In order to bring home the charge, the prosecution examined as many as 11 witnesses and placed Ex. P/l to Ex. P/13 the documents on record. The defence of appellant is of false implication and the same defence, he set forth in the statement recorded u/sec. 313 of Cr.P.C. however, he did not choose to examine any witness in support of his defence. 9. Learned Special Judge on the basis of the evidence placed on record came to hold that the charges are proved against the appellant. Eventually, he has been convicted accordingly and sentenced as mentioned herein above. 10. 313 of Cr.P.C. however, he did not choose to examine any witness in support of his defence. 9. Learned Special Judge on the basis of the evidence placed on record came to hold that the charges are proved against the appellant. Eventually, he has been convicted accordingly and sentenced as mentioned herein above. 10. In this manner, the present appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 11. Vehemently, it has been submitted by Shri Madhukar Kulshreshta, learned Counsel for the appellant that learned Special Judge has erred in convicting the appellant under section 3 (2) (v) of the Act because, nowhere the prosecution has proved that the appellant is not a member of Scheduled Caste or Scheduled Tribe community and if that is the position, the conviction of appellant under section 3 (2) (v) of the Act cannot be sustained. 12. By putting a deep dent on the varacity of the evidence of the prosecutrix as well as on the case of the prosecution, it has been contended by learned counsel that the evidence of prosecutrix has not been corroborated by any independent witness and, therefore, learned Special Judge has erred in convicting the appellant under section 376 (1) of IPC. 13. An alternative submission has also been put-forth by learned counsel that in case, this Court comes to the conclusion that the appellant has committed the offence under Section 376 (1) of the IPC, some leniency may be adopted while passing the sentence. On these premised submissions, it has been argued by learned counsel that by allowing this appeal, the judgment of conviction and order of sentence passed by Special Judge be set aside and the appellant be acquitted from all the charges. 14. Combating the aforesaid submissions of learned counsel for the appellant, it has been put-forth by Shri Bansal, learned Public Prosecutor that prosecutrix is a member of Scheduled Caste and if that would be the position, learned Special Judge did nor err in convicting the appellant under the provisions of the Act. It has also been argued by learned Public Prosecutor that looking to the testimony of the prosecutrix and her age, the learned trial Court has rightly convicted the appellant under Section 376 (1) of the IPC and, therefore, this appeal sans substance and the same be dismissed. 15. It has also been argued by learned Public Prosecutor that looking to the testimony of the prosecutrix and her age, the learned trial Court has rightly convicted the appellant under Section 376 (1) of the IPC and, therefore, this appeal sans substance and the same be dismissed. 15. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part. 16. We shall first of all deal with the submission of the learned counsel for the appellant that whether appellant can be convicted under Section 3 (2) (v) of the Act or not. In this context, we have gone through the wordings of sub-section (2) of Section 3 of the Act. The opening words of sub-section (2) of section 3 are "Whoever, not being a member of Scheduled Caste or a Scheduled Tribe", thus, it was incumbent upon the prosecution to prove that the appellant is not a member of either Scheduled Caste or Scheduled Tribe. Since, none of the prosecution witnesses has proved that appellant is not a member of Scheduled Caste or Scheduled Tribe community, it cannot be said that he is not a member of Scheduled Caste or Scheduled Tribe community, hence, according to us, the appellant cannot be convicted under section 3 (2) (v) of the Act. The conviction of the appellant under this section is accordingly set aside. 17. The question now hinges in this appeal as to whether the appellant has committed the offence under Section 376 (1) of the IPC or not. 18. We are not at all impressed by the submission of learned counsel for the appellant that because there is no corroboration of the evidence of the prosecutrix, therefore, her evidence is not reliable. It is well settled law that in sexual offence, the only evidence of the prosecutrix has to be taken into consideration. The corroboration of the evidence of prosecutrix is needed only when her testimony does not inspire any confidence. However, if the testimony of the prosecutrix inspire confidence and is clear, cogent and trustworthy, according to us, her testimony is not required to be corroborated. By keeping this well settled law, in our mind, we shall now examine the evidence of the prosecutrix. 19. However, if the testimony of the prosecutrix inspire confidence and is clear, cogent and trustworthy, according to us, her testimony is not required to be corroborated. By keeping this well settled law, in our mind, we shall now examine the evidence of the prosecutrix. 19. The learned Special Judge looking to her age to be near about 12 years and since she was prima-facie found to be a minor no oath was adminisered to her. In her testimony, the prosecutrix has specifically stated against the appellant that on the fateful day at 8.00 in the morning, the appellant came to her house and by denoting her mother to be 'Chachi' (Aunti) requested her that he had arranged a religious function to provide meals to female children and requested to accompany the prosecutrix. The mother of the prosecutrix accepted the request of appellant and permitted the prosecutrix to accompany with him. The appellant carried the prosecutrix in a jeep and went to Khubat Ghati. In the jungle of Khubat Ghati he forcibly undressed her and thereafter committed vile act of rape with her. Specifically prosecutrix is saying that appellant forciby entered his penis in her private part and thereafter allowed her to go. The prosecutrix has further stated that on account of the hateful act committed by the appellant, she in weeping condition came nearby the road and by boarding a bus came to her home, where she narrated the entire incident to her mother. Thereafter, with her mother, she went to police chowki to lodge the report. On hearing the report read-over to her in the Court, she stated that the same kind of report was lodged by her. 20. Further the prosecutrix has stated that she was referred to the lady doctor, where the lady doctor after examining her, seized her panty. The prosecutrix has also proved the spot map EX.P/2. In cross-examination, nothing has been carved out in order to hold that she is telling lie. On the other hand, we find her evidence to be clear cogent and trustworthy. The only inference which could be drawn from the testimony of her is that in order to satisfy his lascivious activity, the appellant has committed this hateful act with the prosecutrix who did not even see the 13th spring of her life. True, some suggestions have been given to the prosecutrix that she. The only inference which could be drawn from the testimony of her is that in order to satisfy his lascivious activity, the appellant has committed this hateful act with the prosecutrix who did not even see the 13th spring of her life. True, some suggestions have been given to the prosecutrix that she. is having friendship with the appellant, but this suggestion has been firmly denied by her. Even if we presume for the sake of argument (though it has not at all been proved from the evidence of the prosecutrix) that she was a consenting party, looking to her age at the time of incident she was a minor, her consent is immaterial. On scanning the testimony of the prosecutrix, we find that the ingredients of Section 375 of IPC are proved. The suggestion put to her that by fall on wooden object, she sustained injury in her private part, has been firmly denied by her. According to us, there is no infirmity in the testimony of the prosecutrix and her evidence is very natural. Learned counsel for the appellant could not point-out that how and in what manner the evidence of the prosecutrix cannot be relied upon. Since, the evidence of the prosecutrix is worth reliable, therefore, according to us, no corroboration is needed. Apart from this, it is very difficult to have corroboration of sexual offence for the simple reason that this offence is being committed secretly in a place where there is no access. 21. The evidence of the mother of prosecutrix Ramvati Bai (PW-2) is also very much material. Specifically the mother of prosecutrix is saying that prosecutrix told about committing sexual intercourse against her will and wishes by the appellant. 22. At this juncture, it would be profitable to go through the evidence of the lady Dr. Smt. V. Kumra (PW-4) who examined the prosecutrix on the date of incident i.e. on 14.5.2000. According to lady doctor, the hymen of the prosecutrix was tom and there was tenderness and swelling on the margin of her private part. The panty of the prosecutrix was sealed by the lady doctor and she also prepared two slides of the vaginal swab of the prosecutrix and handed over the same to the investigating agency. According to lady doctor, the hymen of the prosecutrix was tom and there was tenderness and swelling on the margin of her private part. The panty of the prosecutrix was sealed by the lady doctor and she also prepared two slides of the vaginal swab of the prosecutrix and handed over the same to the investigating agency. The lady doctor in order to ascertain the age of the prosecutrix, referred her for rediological examination, from where the matter was referred to the Medical Board. Firmly, it has been stated by the lady doctor that sexual intercourse was committed with the prosecutrix within 24 hours. The suggestion put to lad doctor that itching by a nail or by a pointed part of the wooden object such injury, which was found on the private part of the prosecutrix may come, has been firmly denied by the lady doctor. On the contrary, she firmly stated that the tenderness and swelling on the private part of the prosecutrix had come since she was subjected to sexual intercourse. The suggestion put to lady doctor that prosecutrix was not subjected to sexual intercourse within 24 hours, has been firmly denied by her. Thus, according to us, there is material corroboration of the evidence of the prosecutrix by the evidence of lad doctor. 23. Dr. M.L. Agrawal (PW-6) is the Radiologist and this witness radiologically examined the prosecutrix in order to ascertain her age. According to him, the age of the prosecutrix was in between 12 to 14 years. The suggestion put to Radiologist that the age of the prosecutrix was above 14 years, has been firmly denied by him, however, he has stated that the prosecutrix was above 12 years but below 14 years. 24. According to us, the act of committing rape by appellant over the prosecutrix has been proved by the prosecution and from the testimony of the prosecutrix it is proved that in order to satisfy his lascivious activity, the appellant has committed this hateful act upon her against her wishes and will. The prosecutrix was a minor girl at the time of incident. Mr. Matthew has said:- "Whoever look the on a woman to lust after her hath committed adultery with her already in his heart." 25. The prosecutrix was a minor girl at the time of incident. Mr. Matthew has said:- "Whoever look the on a woman to lust after her hath committed adultery with her already in his heart." 25. Since it is proved that the age of prosecutrix was above 12 but below 14 years at the time of the commission of the offence, therefore, according to us, the learned trial Court did not commit any error in convicting the appellant under Section 376 (1) of IPC, however, the conviction of the appellant for the reasons stated herein above cannot be sustained under section 3 (2) (v) of the Act. 26. Resultantly, this appeal succeeds in part. The judgment of conviction and order of sentence against the appellant under section 3 (2) (v) of the Act is hereby set aside and he is acquitted from the said charge. However, his conviction under section 376 (1) of the IPC is hereby affirmed and he is sentenced to suffer 10 years RI and fine of Rs. 2,000/- in default further RI of 2 months.